01 Sep A Family Lawyers perspective on Spousal support
Under the Family Law Act, a spouse or de facto spouse has the right to apply for support from their former spouse if they are unable to adequately support themselves.
If the applicant spouse can establish a need, then the Court looks to the other party to ascertain if they have the capacity to provide support.
In making a decision the Court would take into consideration the age and state of health of each of the parties, their income, property, resources and capacity to work. The Court will look at whether the relationship has affected a persons ability to earn an income.
The Court will also take account of a suitable standard of living in all the circumstances and whether a party has the care of children under 18 or children over 18 who are either students or have a disability
Some parties are able to reach agreements and if necessary can record their agreement in a binding way – either by way of a properly drafted Financial agreement or a Consent Order.
If no agreement can be reached, then an application might need to be made to the Court for an Order on a contested basis. There are deadlines for filing such an application.
The sad reality for most separating families is that once they are in 2 separate households they may not have the means to fund 2 households in the same way they could fund 1 household during the relationship. As such there are often cases where a party does not have the capacity to support themselves but due to the income of the other not being substantial, they may not be realistically able to secure support from their spouse as that spouse would have to firstly fund child support, and then is entitled to funds for their own reasonable living expenses – and if there are funds left over then there might be money available to enable some support to be given to their spouse.
Receipt of any Centrelink pension or benefit is ignored by the Court in considering if someone has financial needs that they cannot satisfy.
If the need of the spouse cannot realistically be met from periodic payment of spousal support they may qualify for an adjustment of property which may make up for the desperate circumstances after separation.
This area of law is complicated and it is wise to seek the assistance of an experienced Family Lawyer to provide wise guidance as to your rights and entitlements.
It is important to factor in the costs of proceedings in any Family Law consideration and spousal support is no exception. There is no value in spending more on getting an Order than you are likely to secure by way of payments.
At Belperio Clark we have experienced Family Lawyers in our Adelaide office who are well able to advise of your likely entitlements and render assistance in negotiating an agreement or issuing proceedings.
